BOG defeats pro bono reporting

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“All we are doing is gathering information to find out what people are, or are not doing.” Earl H. Munson Jr.

The State Bar Board of Governors has voted down a proposal that would have petitioned the State Supreme Court to implement mandatory pro bono reporting. During Friday’s meeting, the board voted 30-6 against the proposal, which came from the Legal Assistance Committee (LAC).

Gov. Earl H. Munson Jr., of Boardman Law Firm LLP in Madison, presented the committee’s proposal to the Board of Governors. That plan would have requested a four-year period during which lawyers would have been required to report their level of legal service to people of limited means.

Mandatory Reporting

The proposal would not have required attorneys to provide pro bono services. Instead, it would have asked whether they engaged in those activities and at what level. Those questions would have been incorporated into the annual dues statements.

Munson expressed concerns about a declining level of pro bono service by lawyers. He framed the issue in terms of professional responsibility and indicated the need to get a handle on the actual level of participation by the state’s lawyers.

“I think this is the first step toward fixing a legal assistance program that is broken,” Munson told the board.

He indicated that the profession seemed to be falling behind in providing legal services to the poor, but the only way that the bar was going to learn what lawyers are really doing was to ask them.

“All we are doing is gathering information to find out what people are, or are not doing,” Munson said.

Dean R. Dietrich, the State Bar Treas-urer, noted that the board needed to recognize the potential cost associated with the proposal. Dietrich, of Ruder, Ware & Michler, LLSC in Wausau, said the bar would need to purchase additional software at a cost of about $10,000 and utilize about $40,000 worth of staff time to implement the plan.

Member Opposition

Referring to a strong negative response from the members they represent, several governors expressed opposition to the proposal. They stated that members were frustrated by what they perceived as the State Bar sending more mandates out from Madison.

Gov. Peter Daniel Kafkas, an administrative law judge with the Wisconsin Division of Hearings and Appeals, acknowledged that Munson’s motives were good, but Kafkas opposed this approach to addressing the issue of pro bono service. He characterized it as a “stick” rather than a “carrot” approach that would not improve relations with members.

“I think that our members already are feeling very disenfranchised,” Kafkas said.

Approving this plan would not help with that, he observed, adding that many lawyers were already providing a great deal of service that was essentially pro bono by handling State Public Defender appointments for fees that did not cover their costs. He also expressed concerns about the $50,000 price tag.

Although he thought it was a good idea, Gov. Robert W. Swain Jr., of Peterson, Berk & Cross S.C. in Appleton, said his constituents were very clear in their opposition to the proposal. Members had approached him with concerns about what the next step would be once the information was gathered. They expressed concerns about what the Supreme Court would do if it looked at that information and decided lawyers were not providing enough pro bono services. His constituents had expressed an “ask me no questions, I’ll tell you no lies” attitude, he said.

“They will start logging a lot of pro bono that doesn’t exist, in fear of what the consequences will be after this statistical study is done,” Swain said.

Gov. John Arthur Busch, of Michael Best & Friedrich LLP in Milwaukee, also opposed the idea of mandatory reporting. Busch noted that his firm had a strong commitment to providing pro bono services.

Busch said he did not see the LAC’s proposal as an effective tool for encouraging pro bono activities. He encouraged Wisconsin to look at other states which might be more successful in providing pro bono services.

“Our State Bar and state court system should take a long hard look at how we treat pro bono in our state and compare it to how it’s being done in other states,” Busch said.

He acknowledged that some cajoling could be an effective tool for encouraging lawyers to do more pro bono work; however, he thought that might be most effective coming from trial judges.

Past President Gerald W. Mowris echoed that sentiment, noting that when a judge asked him to do something, he would do it. He also expressed a need for state and federal government to step forward and recognize their responsibility to ensure that the poor had access to the legal system.

“I’m concerned that the government of this state does not recognize its obligation to support legal services for the poor,” Mowris said.

	Links Wisconsin Supreme Court

In the end, the board officially voted 30-6 against the mandatory pro bono proposal. Following the vote, Munson told the Wisconsin Law Journal that he did not anticipate the issue of mandatory pro bono coming back in the “foreseeable future.”

Other Alternatives

Gov. Mary E. Triggiano, from Legal Action of Wisconsin Inc., noted that the Legal Assistance Committee is also looking at another program designed to “reinvigorate pro bono at the grassroots level.” The model program would be based on something similar that is being done in Indiana. It would develop a committee in each of the state’s 10 administrative districts that would be led by one or more judges.

It would also ask the state Supreme Court to establish a commission to oversee the district committees.

The committes would try to gather information on the types of pro bono activities within their districts, taking the onus off of lawyers to report. The committees could share the information they received through the commission taking successful elements from one district and attempting to mirror them in another district.

“If Milwaukee has a wonderful pilot project, they can share that with other districts,” Triggiano explained.

Tony Anderson can be reached by email.